Documente Academic
Documente Profesional
Documente Cultură
491
105 S.Ct. 2192
85 L.Ed.2d 553
Syllabus
Respondent, a Massachusetts prison inmate, as a result of a fight that
occurred in a prison office, was charged with violation of prison
regulations. At the hearing on these charges, the disciplinary board
refused to allow respondent to call witnesses whom he had requested, but
the record of the hearing does not indicate the board's reason for such
refusal. The board found respondent guilty, and 150 days of his "good
time" credits were forfeited. Respondent then sought a writ of habeas
corpus in a Massachusetts trial court, which sustained his claim that
petitioner prison Superintendent had deprived him of the due process
guaranteed by the Fourteenth Amendment, because petitioner advanced no
reasons in court as to why respondent was not allowed to call the
requested witnesses. The Massachusetts Supreme Judicial Court affirmed,
holding that there must be some support in the administrative record to
justify a decision not to call witnesses, and that since the administrative
record in this case contained no such support, the state regulations
governing presentation of proof in disciplinary hearings were
unconstitutional to the extent that they did not require the administrative
record to contain reasons supporting the board's denial of an inmate's
witness request.
Held: The Due Process Clause of the Fourteenth Amendment does not
require that prison officials' reasons for denying an inmate's witness
request appear in the administrative record of the disciplinary hearing.
While the Due Process Clause does require that the officials at some point
state their reasons for refusing to call witnesses, they may do so either by
making the explanation part of the administrative record or by later
presenting testimony in court if the deprivation of a "liberty" interest, such
as that afforded by "good time" credits, is challenged because of the
refusal to call the requested witnesses. Pp. 495-500.
390 Mass. 399, 456 N.E.2d 1111, vacated and remanded.
Martin E. Levin, Framingham, Mass., for petitioner, pro hac vice, by
special leave of Court.
Jonathan Shapiro, Boston, Mass., for respondent.
Justice REHNQUIST delivered the opinion of the Court.
One week later respondent was charged with three violations of prison
regulations as a result of this imbroglio. He notified prison officials, on a form
provided for that purpose, that he wished to call four witnesses at the hearing
which would be held upon these charges: two fellow inmates, the charging
officer, and the officer who was involved in the fight. A hearing was held on
the charges in February 1982. At this hearing the charging officer appeared and
testified against respondent, but the board declined to call the other witnesses
requested by respondent. Respondent was advised of no reason for the denial of
his request to call the other witnesses, and apparently whatever record there
may be of this disciplinary proceeding does not indicate the board's reason for
declining to call the witnesses. The board found respondent guilty as charged,
and after an administrative appeal in which penalties were reduced, respondent
received the sanction of 25 days in isolation and the loss of 150 days of goodtime-credits.
credits, an interest which could not be taken from him in a prison disciplinary
hearing without the minimal safeguards afforded by the Due Process Clause of
the Fourteenth Amendment. The touchstone of due process is freedom from
arbitrary governmental action, Wolff, 418 U.S., at 558, 94 S.Ct., at 2975, but "
[p]rison disciplinary proceedings are not part of a criminal prosecution, and the
full panoply of rights due a defendant in such proceedings does not apply." Id.,
at 556, 94 S.Ct., at 2974. Chief among the due process minima outlined in
Wolff was the right of an inmate to call and present witnesses and documentary
evidence in his defense before the disciplinary board. We noted in Wolff and
repeated in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810
(1976), that ordinarily the right to present evidence is basic to a fair hearing, but
the inmate's right to present witnesses is necessarily circumscribed by the
penological need to provide swift discipline in individual cases. This right is
additionally circumscribed by the very real dangers in prison life which may
result from violence or intimidation directed at either other inmates or staff. We
described the right to call witnesses as subject to the "mutual accommodation
between institutional needs and objectives and the provisions of the
Constitution. . . ." Baxter, supra, at 321, 96 S.Ct., at 1559, citing Wolff, supra,
418 U.S., at 556, 94 S.Ct., at 2974.
7
Thus the prisoner's right to call witnesses and present evidence in disciplinary
hearings could be denied if granting the request would be "unduly hazardous to
institutional safety or correctional goals." Wolff, supra, at 566, 94 S.Ct., at
2974; Baxter, supra, 425 U.S., at 321, 96 S.Ct., at 1559. See also Hughes v.
Rowe, 449 U.S. 5, 9, and n. 6, 101 S.Ct. 173, 175, and n. 6, 66 L.Ed.2d 163
(1980). As we stated in Wolff : "Prison officials must have the necessary
discretion to keep the hearing within reasonable limits and to refuse to call
witnesses that may create a risk of reprisal or undermine authority, as well as to
limit access to other inmates to collect statements or to compile other
documentary evidence. Although we do not prescribe it, it would be useful for
the [disciplinary board] to state its reasons for refusing to call a witness,
whether it be for irrelevance, lack of necessity, or the hazards presented in
individual cases." 418 U.S., at 566, 94 S.Ct., at 2980.
See Baxter, supra, 425 U.S., at 321, 96 S.Ct., at 1559. Notwithstanding our
suggestion that the board give reasons for denying an inmate's witness request,
nowhere in Wolff or Baxter did we require the disciplinary board to explain why
it denied the prisoner's request, nor did we require that those reasons otherwise
appear in the administrative record.
Eleven years of experience since our decision in Wolff does not indicate to us
any need to now "prescribe" as constitutional doctrine that the disciplinary
board must state in writing at the time of the hearing its reasons for refusing to
call a witness. Nor can we conclude that the Due Process Clause of the
Fourteenth Amendment may only be satisfied if the administrative record
contains support or reasons for the board's refusal. We therefore disagree with
the reasoning of the Supreme Judicial Court of Massachusetts in this case. But
we also disagree with petitioner's intimation, Brief for Petitioner 53, that courts
may only inquire into the reasons for denying witnesses when an inmate points
to "substantial evidence" in the record that shows prison officials had ignored
our requirements set forth in Wolff. We further disagree with petitioner's
contention that an inmate may not successfully challenge the board unless he
can show a pattern or practice of refusing all witness requests. Nor do we agree
with petitioner that "across-the-board" policies denying witness requests are
invariably proper. Brief for Petitioner 53-55, n. 9.
10
The question is exactly that posed by the Supreme Judicial Court in its opinion:
"whether the Federal due process requirements impose a duty on the board to
explain, in any fashion, at the hearing or later, why witnesses were not allowed
to testify." 390 Mass., at 405, 456 N.E.2d, at 1115. We think the answer to that
question is that prison officials may be required to explain, in a limited manner,
the reason why witnesses were not allowed to testify, but that they may do so
either by making the explanation a part of the "administrative record" in the
disciplinary proceeding, or by presenting testimony in court if the deprivation
of a "liberty" interest is challenged because of that claimed defect in the
hearing. In other words, the prison officials may choose to explain their
decision at the hearing, or they may choose to explain it "later." Explaining the
decision at the hearing will of course not immunize prison officials from a
subsequent court challenge to their decision, but so long as the reasons are
logically related to preventing undue hazards to "institutional safety or
correctional goals," the explanation should meet the due process requirements
as outlined in Wolff.
11
We have noted in Wolff, supra, and in Baxter, supra, that prison disciplinary
hearings take place in tightly controlled environments peopled by those who
have been unable to conduct themselves properly in a free society. Many of
these persons have scant regard for property, life, or rules of order, Wolff, 418
U.S., at 561-562, 94 S.Ct., at 2977, and some might attempt to exploit the
disciplinary process for their own ends. Id., at 563, 94 S.Ct., at 2978. The
requirement that contemporaneous reasons for denying witnesses and evidence
be given admittedly has some appeal, and it may commend itself to prison
officials as a matter of choice: recollections of the event will be fresher at the
moment, and it seems a more lawyerlike way to do things.2 But the primary
business of prisons is the supervision of inmates, and it may well be that those
charged with this responsibility feel that the additional administrative burdens
which would be occasioned by such a requirement detract from the ability to
perform the principal mission of the institution. While some might see an
advantage in building up a sort of "common law of the prison" on this subject,
others might prefer to deal with later court challenges on a case-by-case basis.
We hold that the Constitution permits either approach.
12
But to hold that the Due Process Clause confers a circumscribed right on the
inmate to call witnesses at a disciplinary hearing, and then conclude that no
explanation need ever be vouched for the denial of that right, either in the
disciplinary proceeding itself or if that proceeding be later challenged in court,
would change an admittedly circumscribed right into a privilege conferred in
the unreviewable discretion of the disciplinary board. We think our holding in
Wolff, meant something more than that. We recognized there that the right to
call witnesses was a limited one, available to the inmate "when permitting him
to do so will not be unduly hazardous to institutional safety or correctional
goals." Id., at 566, 94 S.Ct., at 2979. We further observed that "[p]rison
officials must have the necessary discretion to keep the hearing within
reasonable limits and to refuse to call witnesses that may create a risk of reprisal
or undermine authority, as well as to limit access to other inmates to collect
statements or to compile other documentary evidence." Ibid.
13
14
16
17
It is so ordered.
18
19
20
On March 10, 1983, this case was submitted to the Supreme Judicial Court of
Massachusetts along with four others.1 In each case, prisoners in state
correctional institutions challenged the procedural fairness of recurring
practices in the prison disciplinary process. The five opinions were all assigned
to the same justice, who eight months later delivered five unanimous opinions
for the court interpreting the minimum procedural requirements of state
regulations and the Federal Constitution in the prison context. The evident
deliberation of the Massachusetts court in these cases suggests a careful effort
to establish workable rules for prison disciplinary proceedings in that State.
21
* The Court candidly states that it granted certiorari to review the judgment of
the Supreme Judicial Court of Massachusetts because that judgment "seem[s] to
us to go further than our pronouncement on this subject in Wolff v. McDonnell,
418 U.S. 539 [94 S.Ct. 2963, 41 L.Ed.2d 935] (1974)." Ante, at 492. As Justice
MARSHALL points out, that is a manifestly insufficient reason for adding this
case to our argument docket. See post, at 522-523, n. 21. The merits of an
isolated case have only an oblique relevance to the question whether a grant of
certiorari is consistent with the sound administration of this Court's
discretionary docket.2
22
When the prison superintendent petitioned for certiorari, he had a heavy burden
of explaining why this Court should intervene in what amounts to a controversy
between the Supreme Judicial Court of Massachusetts and that State's prison
officials.3 In determining what process is due in the prison context under the
Federal Constitution, the Court emphasizes that we must be cautious to ensure
that those requirements will be fair to all parties in the varying conditions found
in each of the 50 States and the District of Columbia. Ante, at 497-498, n. 2.
The Court's display of caution would have been more relevant in deciding
whether to exercise discretionary jurisdiction in the first place. The denial of
certiorari would have left the decision below in effect for the State of
Massachusetts, but would have left other jurisdictions to explore the contours of
Wolff, in the light of local conditions.
23
II
24
Having granted the petition for certiorari, however, each of us has a duty to
address the merits. All of us agree that prison officials may not arbitrarily
refuse to call witnesses requested by an inmate at a disciplinary hearing. It is
therefore obvious that even if the reason for the refusal is not recorded
contemporaneously, it must exist at the time the decision is made.
25
Moreover, as the Court expressly holds, ante, at 499, the burden of proving that
there was a valid reason for the refusal is placed on prison officials rather than
the inmate. In many cases, that burden will be difficult to discharge if
corrections officers elect to rely solely upon testimonial recollection that is
uncorroborated by any contemporaneous documentation. For that reason, the
allocation of the burden of proof, together with the policy considerations
summarized by Justice MARSHALL, will surely motivate most, if not all,
prison administrators to adopt "the prevailing practice in federal prisons and in
state prisons throughout the country." Post, at 518 (MARSHALL, J.,
dissenting). Because I am not persuaded that the Federal Constitution
prescribes a contemporaneous written explanation as the only permissible
method of discharging the prison officials' burden of proving that they had a
legitimate reason for refusing to call witnesses requested by an inmate, I join
the Court's opinion.5
26
27
The court below held there must be "some support in the record" for the denial
of an inmate's right to call witnesses at a prison disciplinary hearing. Rejecting
this position, the Court today concludes that the Constitution requires only that
prison officials explain in court, many months or years after a disciplinary
hearing, why they refused to hear particular witnesses. I cannot accept that
alleged denials of the vital constitutional right to present witnesses are to be
reviewed, not on the basis of an administrative record, but rather on the basis of
post hoc courtroom rationalizations. I believe the Constitution requires that a
contemporaneous-record explanation for such a denial be prepared at the time
of the hearing. The record need not be disclosed to the inmate but would be
available to a court should judicial review later be sought. Upon a proper
showing that security or other needs of prison officials so require, the court
could review the contemporaneous-record explanation in camera. That this
process is compatible with the prison setting is demonstrated by the fact that
the recording of contemporaneous reasons for denying requests to call
witnesses is the current practice in federal prisons and in most state prisons in
this country.
28
* The facts of this case, which the Court declines to relate in full, highlight the
importance of the right to call witnesses at disciplinary hearings. As the Court
describes, respondent John Real was among a group of inmates who left the
prison metal shop to observe a fight between an inmate and guard that had
broken out in an adjacent office. A supervising officer, John Baleyko, ordered
Real and the others to leave the area. The Court blandly observes that Real "did
not depart." Ante, at 493. Real's version of the events, however, is considerably
II
30
The Court acknowledges that Real had a constitutional right to present his
defense witnesses unless his disciplinary board had a legitimate basis for
excluding them. This much is clear from Wolff v. McDonnell, 418 U.S. 539, 94
S.Ct. 2963, 41 L.Ed.2d 935 (1974). Drawing on longstanding principles of due
process embodied in the Fifth, Sixth, and Fourteenth Amendments,2 the Court
in Wolff recognized what might be called a "qualified" constitutional right to
call witnesses:
31
32
See also Baxter v. Palmigiano, 425 U.S. 308, 321, 96 S.Ct. 1551, 1559, 47
L.Ed.2d 810 (1976). This qualified right was one element in what the Court
described as an overall effort to create a "reasonable" and "mutual
accommodation" between the "provisions of the Constitution" and "the needs of
the institution" in the context of disciplinary hearings. 418 U.S., at 556, 572, 94
S.Ct., at 2975, 2982.
33
Wolff did not consider how best to strike that reasonable accommodation with
respect to implementing the right to call witnesses.3 Two options are presented
today. The first would require disciplinary boards to enter on the record
contemporaneous written reasons for their exclusion of witnesses; these
explanations, while not necessarily available to the inmate, would be subject to
judicial review to assure that exclusion of witnesses was not arbitrary but rather
was based on permissible factors. The second option would only require
disciplinary boards to offer post hoc, courtroom rationalizations for a board's
refusal to hear requested witnesses; these rationalizations would constitute
attempts to justify the board's actions, many months, or years, after a witness
had been excluded.
34
Inexplicably, the Court, with only passing consideration of the first option,
chooses the second. But no basis for this choice can be found in the principle of
"mutual accommodation" announced in Wolff. If Wolff's principle of mutual
accommodation means, as the State contends, that an inmate "is entitled only to
those facets of procedural due process which are consistent with the demands of
prison security,"4 it surely also means that the inmate is entitled to all the facets
of due process that are consistent with the demands of prison security.
Contemporaneous explanations for excluding witnesses are an important
element of due process at disciplinary hearings and, as long as prison officials
have the option of keeping these explanations from the inmate, a requirement
that such explanations be recorded would not intrude on the "institutional needs
and objectives" of prisons that Wolff identified. In the face of this readily
available means of enforcing the inmate's right, the Court's decision instead to
choose the second option, that of after-the-fact courtroom explanations,
gratuitously dilutes the constitutional rights of prison inmates and fulfills my
previously expressed fear that the "noble holdings" of Wolff would become
"little more than empty promises." Wolff, supra, at 581, 94 S.Ct., at 2987
(opinion of MARSHALL, J.). I therefore dissent.
III
35
37
38
39
with which to attempt to prove their case or disprove that of the charging
officer; they have no constitutional right to confront and cross-examine adverse
witnesses, and counsel is typically not present at these hearings to marshal the
inmate's case. Wolff, 418 U.S., at 568, 94 S.Ct., at 2980; see also Baxter, 425
U.S., at 321-322, 96 S.Ct., at 1559. That so much hinges on the right to present
witnesses is a particularly compelling reason for assuring, through a
requirement of written reasons when witnesses are excluded, that the right is
being scrupulously honored. See Connecticut Bd. of Pardons v. Dumschat, 452
U.S. 458, 472, 101 S.Ct. 2460, 2468, 69 L.Ed.2d 158 (1981) (STEVENS, J.,
dissenting);7 cf. Harris v. Rivera, 454 U.S. 339, 344-345, n. 11, 102 S.Ct. 460,
463-464, n. 11, 70 L.Ed.2d 530 (1981) (per curiam ) ("[W]hen other procedural
safeguards have minimized the risk of unfairness, there is a diminished
justification for requiring a judge to explain his rulings").
40
41
These very reasons have led the Court to impose a contemporaneousexplanation requirement when virtually identical procedural rights, guaranteed
by the Constitution, were at stake.9 Vitek v. Jones, 445 U.S. 480, 100 S.Ct.
1254, 63 L.Ed.2d 552 (1980), is an example directly on point. There the Court
held that an inmate being considered for transfer to a mental institution has a
constitutional right to a pre-transfer hearing and to present witnesses at that
hearing. To this point, Vitek is on all fours with this case; inmates in both
proceedings have a right to a hearing and to witnesses. Yet in Vitek the Court
further recognized that witnesses could not be excluded except upon a
legitimate record finding of good causethe very requirement the Court today
chooses not to extend to disciplinary hearings.10 Similarly, Gagnon v. Scarpelli,
411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 279 (1973), recognized a due process
right to counsel under some circumstances at parole and probation revocation
hearings. To assure that this important right was faithfully honored, we further
held that "[i]n every case in which a request for counsel at a preliminary or
final hearing is refused, the grounds for refusal should be stated succinctly in
the record." Id., at 791, 93 S.Ct., at 1764. See also North Carolina v. Pearce,
395 U.S. 711, 726, 89 S.Ct. 2072, 2081, 23 L.Ed.2d 656 (1969) (written
reasons required when more severe sentence imposed on defendant after second
trial); Gagnon, supra (written reasons required for probation revocation);
Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484
(1972) (same for parole revocation decisions); Goldberg v. Kelly, 397 U.S. 254,
271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287 (1970) (written reasons for
termination of public assistance payments); Kent v. United States, 383 U.S.
541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966) (written reason required
when juvenile court waives jurisdiction, subjecting defendant to trial as adult).
42
Ignoring these precedents, the Court seems to view the question simply as one
of policy; the Court is content that "significant arguments" can be made in favor
either of its "approach" or of the result I believe is required. The question,
however, is not whether sound penological practice favors one result or the
other, but rather what minimal elements of fair process are required in this
setting to satisfy the Constitution. Due process requires written reasons for
decisions, or for steps in the decisionmaking process, when the individual
interest at stake makes the contribution of such reasons to the fairness and
reliability of the hearing sufficient to outweigh whatever burdens such a
requirement would impose on the government. See Black v. Romano, 471 U.S.
606, 617-619, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985) (MARSHALL, J.,
concurring) (collecting cases); see generally Mathews v. Eldridge, 424 U.S.
319, 335, 343, 96 S.Ct. 893, 903, 907, 47 L.Ed.2d 18 (1976).
43
Applying this principle here, there can be little doubt that due process requires
disciplinary boards to provide written reasons for refusing to hear witnesses.
The liberty interests at stake in these hearings are, of course, of serious
magnitude, and the right to call witnesses is integral to assuring the fairness and
accuracy of these hearings. Moreover, the reality that disciplinary boards,
composed of correctional officials, may be overly inclined to accept the word
of prison guards and refuse without reason to hear witnesses cannot be ignored.
These hearings include only skeletal due process protections to begin with,
which makes judicial review essential to assuring the fairness and reliability of
the process as a whole. Yet because extra-record judicial review is likely to be
so meaningless a protection of the constitutional right to call witnesses, the
process due an inmate requires witness exclusions to be justified with
contemporaneous explanations. The Court simply fails to come to grips with
the issue of constitutional right posed by this case.
44
IV
45
The Court in Wolff identified two considerations that limit the due process
rights inmates otherwise have: "institutional safety and correctional goals." 418
U.S., at 566, 94 S.Ct., at 2979. The proposal offered by respondentsealed
contemporaneous explanations followed by in camera reviewwould satisfy
these concerns fully. At the same time, this proposal maximizes the ability of
the inmate to enjoy his or her constitutional right to present defense witnesses.
The proposal therefore constitutes a perfectly sensible, "reasonable
accommodation" to the concerns identified in Wolff.
The primary factor that caused the Court in Wolff to qualify and restrict the
right to call witnesses was said to be "institutional safety." Fearing that inmates
might be "subject to the unwritten code that exhorts inmates not to inform on a
fellow prisoner," id., at 562, 94 S.Ct., at 2977, and concerned that honoring a
witness request might subject the witness to "a risk of reprisal or [might]
undermine authority," the Court concluded that the "hazards presented in
individual cases" of "reprisal" against testifying inmates made dangerous the
disclosure to a charged inmate of a board's reasons for refusing to hear his
witnesses. Id., at 566, 94 S.Ct., at 2980. Again today, the Court relies on "the
very real dangers in prison life which may result from violence or intimidation
directed at either other inmates or staff." Ante, at 495. Presumably, the Court's
concern is that an inmate will intimidate or coerce defense witnesses into
testifying falsely, and that a witness who goes to officials to disclose such
threats will be the target of retaliation if a disciplinary board announces that
"institutional safety" precludes it from hearing the witness.11
48
The option of sealed files, subject to later judicial review in camera,12 would
fully protect against the threat of reprisal and intimidation by allowing prison
officials to refuse to disclose to the inmate those record statements they feared
would compromise institutional safety. The in camera solution has been widely
recognized as the appropriate response to a variety of analogous disclosure
clashes involving individual rights and government secrecy needs. For example,
after this Court in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d
62 (1967), held that the identity of informants relied on by the police need not
always be disclosed to the defense at suppression hearings, lower courts turned
to in camera hearings to "protect the interests of both the government and the
defendant." W. LaFave, Search and Seizure 3.3, p. 583 (1978). Through such
hearings into informant identity, "the government can be protected from any
significant, unnecessary impairment of secrecy, yet the defendant can be saved
from what could be serious police misconduct." United States v. Moore, 522
F.2d 1068, 1073 (CA9 1975).13 Similarly, Congress specifically invoked in
camera review to balance the policies of disclosure and confidentiality
contained in the exemptions to the Freedom of Information Act. 5 U.S.C.
552(a)(4)(B). Congress stated that in camera review would "plainly be [the]
necessary and appropriate" means in many circumstances to assure that the
proper balance between secrecy and disclosure is struck. S.Rep. No. 93-1200,
p. 9 (1974). Other examples in which Congress has turned to similar procedures
abound, such as the federal wiretapping statute14 and the Foreign Intelligence
Surveillance Act of 1978,15 both of which rely on closed judicial process to
balance individual rights and Government secrecy needs in determining
whether wiretapping is justified.
49
50
To restrict the right to call witnesses, the Court in Wolff also relied, although
less centrally, on vaguely defined "correctional goals" that seemed to amount to
the need for "swift punishment." 418 U.S., at 566, 94 S.Ct., at 2979. Again
today, the Court invokes the "need to provide swift discipline in individual
cases," ante, at 495, as a basis for refusing to require that prison officials
provide a record statement of reasons for declining to hear requested witnesses.
51
52
More generally, the twinkling of an eye that it would take for a board to offer
brief, contemporaneous reasons for refusing to hear witnesses would hardly
interfere with any valid correctional goals. Indeed, the requirement of stated
reasons for witness denials would be particularly easy to comply with at
disciplinary hearings, for Wolff already requires provision of a " 'written
statement by the factfinders as to the evidence relied on and reasons' for the
disciplinary action." 418 U.S., at 564, 94 S.Ct., at 2979 (citation omitted). To
include in this statement a brief explanation of the reason for refusing to hear a
witness, such as why proffered testimony is "irrelevant" or "cumulative," could
not credibly be said to burden disciplinary boards in any meaningful way in
their task of completing disciplinary report forms.
I have expressed previously my view that:
53
54
". . . As long as the government has a good reason for its actions it need not fear
disclosure. It is only where the government acts improperly that procedural due
process is truly burdensome. And that is precisely when it is most necessary."
Board of Regents v. Roth, 408 U.S. 564, 591, 92 S.Ct. 2701, 2716, 33 L.Ed.2d
548 (1972) (dissenting).
55
If ever that view is true, it is surely true here. See also Hewitt v. Helms, 459
U.S. 460, 495, 103 S.Ct. 864, 884, 74 L.Ed.2d 675 (1983) (STEVENS, J.,
dissenting) ("[A] requirement of written reasons [for keeping inmates in
segregation] would [not] impose an undue burden on prison officials").
56
Cf. SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed.
1995 (1947). Thus, whatever the proper bearing of other "correctional goals"
on the inmate's constitutional right to call witnesses, reliance on those goals to
hold that prison officials must explain their refusal to hear witnesses in court,
rather than in the record, is simply misplaced.
V
57
In the end, the Court's decision rests more on abstract generalities about the
demands of "institutional safety and other correctional goals" rather than on any
attempt to come to grips with the specific mechanics of the way in which the
principle established below would operate. Yet even these abstract generalities
founder on the concrete practical experience of those charged with the
continuing implementation of Wolff. The requirement the Court declines to
adopt today is the prevailing practice in federal prisons and in state prisons
throughout the country. Regulations promulgated by the Federal Bureau of
Prisons provide that an inmate in federal prison has
58
"the right to submit names of requested witnesses and have them called to
testify . . . provided the calling of witnesses . . . does not jeopardize or threaten
institutional or an individual's security. . . . The chairman shall document
reasons for declining to call requested witnesses in the [Institutional
Disciplinary Committee] report." 28 CFR 541.17(c) (1984) (emphasis
added).
59
60
61
"Written policy and procedure provide that the inmate is given an opportunity
to make a statement and present documentary evidence, and may request
witnesses on his/her behalf; reasons for the denial of such a request are stated
in writing " (emphasis added). ACA, Standards for Adult Correctional
63
VI
64
The Court's decision leaves the inmate's constitutional right to present defense
witnesses dangling in the wind. Perhaps that is the virtue to the Court of its
decision, for I certainly can discern no other basis, grounded in principle or
sound reasoning, for it. Wolff may give prison officials a privilege to dispense
with certain due process rights, but, as always, "[t]he scope of a privilege is
limited by its underlying purpose." Roviaro v. United States, 353 U.S. 53, 60,
77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). The underlying purposes of the
privilege recognized in Wolff the promotion of "institutional safety and
correctional goals"can be realized fully by contemporaneous explanations not
disclosed to the inmate. For that reason, the privilege recognized in Wolff ought
to evaporate in the face of this means of accommodating the inmate's due
process rights. That is the conclusion of penological officials and experts
throughout the country and my conclusion as well. The Court, however,
concludes otherwise. I therefore dissent.
The record in this case is exceedingly thin, and shows that some confusion
existed at trial concerning respondent's habeas petition seeking review of the
February 1982 disciplinary hearing and another unrelated petition arising out of
a 1980 disciplinary hearing. The trial court also apparently granted incomplete
relief, which was only corrected 10 months later by another judge who then
stayed the relief. Moreover, the Supreme Judicial Court did not just affirm the
trial court, but remanded to permit petitioner, at his option, to conduct another
disciplinary hearing. Given the state of this record, we think it wise to remand
for further proceedings.
Mass. 419, 456 N.E.2d 1123 (1983); Royce v. Commissioner of Correction, 390
Mass. 425, 456 N.E.2d 1127 (1983). The court did not reach the constitutional
questions presented in Royce since it resolved the controversy in favor of the
prisoner on the basis of state regulations.
2
Cf. Watt v. Alaska, 451 U.S. 259, 276, 101 S.Ct. 1673, 1683, 68 L.Ed.2d 80
(1981) (STEVENS, J., concurring) ("My disagreement in these cases with the
Court's management of its docket does not, of course, prevent me from joining
[the Court's opinion] on the merits"); Revere v. Massachusetts General
Hospital, 463 U.S. 239, 246-247, 103 S.Ct. 2979, 2984-2985, 77 L.Ed.2d 605
(1983) (STEVENS, J., concurring in judgment).
thereby better done. There is no doubt that if there were a super-Supreme Court,
a substantial proportion of our reversals of state courts would also be reversed.
We are not final because we are infallible, but we are infallible only because
we are final." Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 427, 97 L.Ed.
469 (1953) (concurring in result).
5
Real appears not to have pursued in the lower courts the failure to produce the
correctional officer.
See n. 7, infra.
Wolff did eliminate one possibility: that the Constitution might require
disclosure to the inmate, at the time of the hearing, of a board's reasons for
refusing to allow requested witnesses to be called. 418 U.S., at 566, 94 S.Ct., at
2979.
See, e.g., Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25
L.Ed.2d 287 (1970); see also Dorszynski v. United States, 418 U.S. 424, 455,
94 S.Ct. 3042, 3058, 41 L.Ed.2d 855 (1974) (Marshall, J., concurring in
judgment); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 40, 99 S.Ct.
2100, 2120, 60 L.Ed.2d 668 (1979) (MARSHALL, J., dissenting); Hewitt v.
Helms, 459 U.S. 460, 479, 103 S.Ct. 864, 875, 74 L.Ed.2d 675 (1983)
(STEVENS, J., dissenting); Connecticut Bd. of Pardons v. Dumschat, 452 U.S.
458, 468, 101 S.Ct. 2460, 2466, 69 L.Ed.2d 158 (1981) (Stevens, J.,
dissenting).
"Few rights are more fundamental than that of an accused to present witnesses
in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct.
1038, 1049, 35 L.Ed.2d 297 (1973). As the Court said in Washington v. Texas,
388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967):
"The right to offer the testimony of witnesses, and to compel their attendance, if
necessary, is in plain terms the right to present a defense, the right to present
the defendant's version of the facts as well as the prosecution's to the
[factfinder] so it may decide where the truth lies. . . . This right is a
fundamental element of due process of law."
See also United States v. Valenzuela-Bernal, 458 U.S. 858, 875, 102 S.Ct.
3440, 3450, 73 L.Ed.2d 1193 (1982) (O'CONNOR, J., concurring) ("[T]he
right to compulsory process is essential to a fair trial"); In re Oliver, 333 U.S.
10
The Court in Vitek stated that the right to call witnesses could not be denied "
'except upon a finding, not arbitrarily made, of good cause for not permitting
such presentation . . . .' " 445 U.S., at 494-495, 100 S.Ct., at 1264 (quoting
court below, Miller v. Vitek, 437 F.Supp. 569, 575 (Neb.1977)) (emphasis
added).
The importance of record explanations for excluding witnesses from
disciplinary hearings is probably even greater than in Vitek, for there the key
witness against an inmate was a neutral physician or psychologist, 445 U.S., at
483, 100 S.Ct., at 1258. A prison guard, who both charges an inmate and is the
main witness against him, is significantly more likely to have his own personal
reasons, including vindictive or retaliatory ones, for wanting to see the inmate
convicted. If contemporaneous explanations for excluding witnesses were
required in Vitek, surely due process requires similar explanations here.
11
I have stated previously my view that the Court's fears are exaggerated in this
context. The prospect of intimidation and later retaliation is much more real
when it comes to confrontation of adverse witnesses than "in the context of an
inmate's right to call defense witnesses." Wolff, 418 U.S., at 584, 94 S.Ct., at
2988 (opinion of MARSHALL, J.). Indeed, the Court recognized as much in
Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976),
13
See also United States v. Alexander, 559 F.2d 1339, 1340 (CA5 1977) ("[I]n
camera hearing may be helpful in balancing those interests"); United States v.
Anderson, 509 F.2d 724 (CA9 1974); United States v. Hurse, 453 F.2d 128
(CA8 1971); United States v. Jackson, 384 F.2d 825 (CA3 1967); People v.
Darden, 34 N.Y.2d 177, 313 N.E.2d 49, 356 N.Y.S.2d 582 (1974).
14
15
16
The Court does not state whether the bare recitation of "institutional safety" is
sufficient to withstand review, or whether some explanation supporting this
assertion must be provided. I too see no need to decide that question today.
17
I would not decide today whether defense counsel has a right to be present at
the in camera proceedings. Cf. United States v. Anderson, 509 F.2d 724 (CA9
1974).
B. Other Correctional Goals
18
See, e.g., Woods v. Marks, 742 F.2d 770 (CA3 1984) (summary judgment
against inmate inappropriate when based on affidavit offering reason for
excluding witness).
19
Neither the parties nor any of the many amici curiae offered such a suggestion
in the voluminous briefs filed in the case. See briefs in Wolff v. McDonnell,
O.T.1973, No. 73-679.
21
No doubt the Court's sparse reasoning in this case and the utter lack of
empirical foundation for its bald assertions is in part a product of the fact that
not a single lower court, state or federal, appears to have considered the
alternative of sealed records and in camera review that the Court today
forecloses. This Court is often called on to strike difficult balances between
individual rights and institutional needs, but by precipitately rushing into voids
left by lower courts, the Court decreases the likelihood that the balance at
which it arrives will properly account for all the relevant interests and available
options. In this case, the State simply cried Wolff, and, despite the absence of
any clear conflict, the Court responded. But hastily granting certiorari every
time an inmate or criminal defendant prevails below, as the current Court seems
wont to do, deprives us of the insight lower court judges could offer on the
issues and of the experiential basis that implementation of lower court decisions
provides. The result, often as not, is the sort of decision rendered today. Once
again, "[p]remature resolution of the novel question presented has stunted the
natural growth and refinement of alternative principles." California v. Carney,
471 U.S. 386, 399, 105 S.Ct. 2066, 85 L.Ed.2d 406 (STEVENS, J., dissenting).
In light of current discussion over the Court's workload, it is worth noting
further that, in the absence of any conflict in the lower courts, the decision to
grant certiorari in this case is virtually unfathomable. At most, a state court had
imposed more stringent due process requirements on its own institutions than
this Court had previously recognized. I continue to believe the justifications for
review in this Court are at their weakest in such cases, where no individual
rights are alleged to be violated and where a state court speaks to its own
institutions. See, e.g., Oregon v. Hass, 420 U.S. 714, 726, 95 S.Ct. 1215, 1222,
43 L.Ed.2d 570 (1975) (MARSHALL, J., dissenting); see also Michigan v.
Long, 463 U.S. 1032, 1065, 103 S.Ct. 3469, 3489, 77 L.Ed.2d 1201 (1983)
(STEVENS, J., dissenting); see generally Developments in the Law, 95
Harv.L.Rev., 1342-1347 (1982). This case should therefore be added to the
mounting list of examples that disprove claims that the Court is overburdened;
"[m]uch of the Court's 'burdensome' workload is a product of its own
aggressiveness" in rushing headlong to grant, often prematurely, the overstated
petitions of State Attorneys General distraught with the performance of their
own state institutions. Carney, supra, 471 U.S., at 396, 105 S.Ct., at ---(STEVENS, J., dissenting). Reserving the argument docket for cases of truly
national import would go far toward alleviating any workload problems
allegedly facing the Court.